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    Update: Supreme Court Hears Arguments on Informational Privacy

    Yesterday, the US Supreme Court heard oral arguments on NASA v. Nelson, which I’ve written about before. The case concerns a George W. Bush-era security policy on background investigations of all civilian employees at the Jet Propulsion Laboratory in La Cañada Flintridge, but the contractors raised privacy objections and said the questions were intrusive and unnecessary. The employees said less than 10% of their work involved classified data, and the people at JPL who worked on those projects were already required to undergo the government’s security clearance processes. The Ninth Circuit Court of Appeals found for the NASA workers, barring implementation of the Bush policy. The Supreme Court agreed to review the case, and the Washington Post reports on the debate at oral arguments.

    The Supreme Court seemed disinclined on Tuesday to impose strict limits on how the federal government can investigate the backgrounds of contractors seeking work, but the justices were more split over what a constitutional right to privacy protects.

    The court recognized the right to “informational privacy” in the 1970s but has done little to clarify what it means. Justice Anthony M. Kennedy acknowledged during Tuesday’s oral arguments that decades later, it remains “somewhat ill-defined or undefined.” […]

    The U.S. Court of Appeals for the 9th Circuit granted them an injunction, saying a question about drug treatment and counseling on Standard Form 84 went too far and raising concerns about the open-ended questions on Form 42, which is given to an applicant’s references.

    [Acting Solicitor General Neal K. Katyal] told the justices that the appeals court got it wrong and that whatever the right to privacy provided, it should not preclude the government from asking the same kinds of questions any other employer would ask. […]

    But members of the court had concerns. Justice Sonia Sotomayor wondered whether the government can ask if a person has a specific genetic characteristic. Justice Samuel A. Alito Jr. asked whether the government can inquire about diet, smoking, hobbies or sexual practices “just because that gives us a better picture of who you are as an employee.” […]

    Katyal avoided specifics, but said some of the hypotheticals posed might not be allowed because they touched on other fundamental rights.

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